Replies to the Lords EU Select Committee
on the Inquiry into the impact of the Lisbon Treaty on the EU
Institutions
QUESTION 1
How comprehensive are the lists of competences
provided by the Lisbon Treaty amendments? Are the lists a matter
of codification?
The Lisbon Treaty for the first time provides
a clear and explicit classification and list of the EU's competence.
The categorisation of competences reflects the rules and practices
under the current Treaties and provide helpful clarification—for
example, by making clear that the EU may cease to exercise shared
competence, and setting out as a distinct category competence
areas where EU action is limited to supporting, co-ordinating
and supplementing the action of Member States.
The lists of competences are comprehensive.
They reflect the current position under the Treaties together
with the limited extensions provided for in the Lisbon Treaty.
In almost all of these areas, the EU already takes action under
other legal bases.
A list of the extended competences is set out
below.
New competences or extensions to competence established
by a new Treaty Article
Energy
The Article creates a distinct legal basis for
shared competence on energy policy although measures in the sphere
of energy is already listed as part of the Community's activities
and the EU has already agreed a number of pieces of legislation
in this field (from energy efficiency and renewables to market
liberalisation)
Member States retain the right to determine
the conditions for exploiting its energy resources, its choice
between different energy sources, the general structure of its
energy supply and all measures of a fiscal nature.
Tourism
Tourism is already listed as an area of Community
activity under the current Treaties, and existing EC action has
taken the form of encouraging training for staff working in the
tourism sector and Communications, studies and publications highlighting,
for example, national good practice on sustainable tourism.
This Article creates a specific legal base for
EU support for Member States action to promote competitiveness
and best practice in the tourism sector. The EU's competence is
limited to supporting, coordinating or supplementing the action
of Member States. EU support can complement national action, for
example on upgrading skills in the tourism sector and building
links between national or regional tourism initiatives.
Civil Protection
This creates a specific legal base for EU action
to encourage co-operation between Member States in order to improve
the effectiveness of systems for preventing and protecting against
natural and man-made disasters. The EU's competence is limited
to supporting, coordinating or supplementing the action of Member
States.
The existing Treaties already list civil protection
as an area of EU activity. EU action to date in this area has
primarily involved measures to enhance EU disaster response by
facilitating information sharing and financial support within
the EU.
Space policy
This Article creates a new shared competence
to draw up a European space policy and—potentially—a
European space programme. It would promote joint initiatives,
support research and technological development, and co-ordinate
the efforts needed for the exploration and exploitation of space.
The treaty also explicitly states that the exercise of EU competence
does not prevent Member States from exercising their own powers
in this area.
Administrative Co-operation
This Article creates a new competence to introduce
measures to improve the administrative capacity of Member States
to implement EU legislation—it is implicitly aimed at the
newer Member States. This competence is again limited to supporting,
co-ordinating or complementary action to Member States' activities.
There is no obligation on Member States to make use of EU support,
and any harmonisation of laws and regulations is explicitly excluded.
Action envisaged would include information and staff exchanges,
and training schemes.
European Research Area
The Treaty includes in the existing provisions
of the EC Treaty dealing with activities in the area of research
and technological development, the objective of achieving a "European
research area". The treaty also explicitly states that the
exercise of EU competence in the area of research and technological
development does not prevent Member States exercising their own
powers in this area.
Sport
The Lisbon Treaty includes the promotion of
European sporting issues in the existing provisions on education,
vocational training and youth. The EU's competence in these areas
is limited to supporting, coordinating or supplementing the action
of Member States.
Travel and residence documents
The Lisbon Treaty extends the current provision
for the adoption of legislation necessary to facilitate the exercise
of the rights of free movement and residence to cover provisions
on travel and residence documents and social security and social
protection.
Common safety concerns in health
Article 152 TEC provides for the adoption of
measures in certain areas of health policy. The Lisbon Treaty
adds that such measures must be adopted "in order to meet
common safety concerns". The changes to Article 152 ("Public
Health") of the Treaty clarify, in summary, that:
— Measures may be brought forward,
under co-decision procedures, which will enable the EU to seek
to harmonise standards of quality and safety in relation to medicinal
products and devices.
— Proposals may be brought forward,
under co-decision procedures, in relation to cross-border health
threats and the protection of public health regarding tobacco
and alcohol. Such proposals would be "incentive measures"
to protect and improve human health, but would not involve harmonisation
of Member State laws in relation to these areas of public health
policy.
New proposals in relation to the above areas
of public health will therefore be brought forward in accordance
with existing QMV procedures.
Intellectual property
The EC has already adopted a range of measures
on legislation on intellectual property using existing powers.
The Lisbon Treaty provides a specific legal basis for measures
in relation to European intellectual property rights.
Crime Prevention
The Lisbon Treaty provides for EU measures to
promote and support Member State activity on crime prevention.
SGEIs (Services of General Economic Interest)
This Treaty provides a specific legal base for
legislation defining the general EU-level principles and conditions,
which apply to the provision of services of general economic interest.
This can already be done on a sectoral basis under the existing
Treaty.
Diplomatic and Consular Protection
The current Treaties provides for Member States'
missions in third countries to assist each others' national on
the same conditions as they would their own nationals and to establish
necessary measures amongst themselves. The Lisbon Treaty enables
the EU to adopt coordination and cooperation arrangements to facilitate
such measures.
Solidarity Clause
The Lisbon Treaty includes a "solidarity
clause" providing for action by Member States and the Union
in the event of a terrorist attack or natural or man-made disaster.
Provision is made for the Council to adopt a decision defining
the implementation arrangements by the Union.
Humanitarian Aid
The EC can already adopt measures relating to
humanitarian aid under existing development cooperation and other
powers. The Lisbon Treaty introduces a specific legal base for
humanitarian aid. The treaty also explicitly states that the exercise
of EU competence in this field does not prevent the Member States
exercising their own powers in this area.
Common Commercial Policy
The Lisbon Treaty amends the existing provisions
on the common commercial policy to refer to foreign direct investment.
QUESTION 2
Why does the Treaty apply the yellow and orange
card procedures to subsidiarity but not to proportionality?
Subsidiarity involves the assessment of whether
the objectives of a particular measure can be sufficiently achieved
by Member States, either at central level or regional and local
level. It is therefore particularly important, and appropriate,
that National Parliaments are given a direct role in relation
to this assessment.
Compliance with the principle of proportionality
is assessed and enforced on the same basis of other general principles
of EU law.
QUESTION 3
Will any decision by the EU to sign an international
agreement or treaty have to be taken by unanimity under the amended
Treaties, or will Qualified Majority Voting apply in policy areas
other than the CFSP?
As at present, the voting rules for the negotiation
and conclusion of international agreements will be determined
by the subject-matter of the agreement concerned.
Unanimity will apply where the agreement covers
a field for which unanimity is required for the adoption of EU
measures as well as in certain other cases such as Association
Agreements. Unanimity is not therefore limited to agreements relating
to the Common Foreign Security Policy.
In other cases, qualified majority voting applies.
For example, as now, agreements relating to international trade
in goods under the common commercial agreement will continue to
be concluded by QMV.
QUESTION 4
Do the new arrangements on Permanent Structured
Cooperation in defence mean that the UK will be faced with the
prospect of either being outvoted under Qualified Majority Voting
if it did join a group of countries making use of this facility,
or be left on the sidelines of EU defence if it did not decide
to join such a group?
The Permanent Structured Co-operation (PSC)
is a new provision that only addresses capability development
as set out in the Protocol on PSC which is an integral part of
the Treaty on European Union as amended by the Lisbon Treaty.
It provides a mechanism to help develop more effective military
capabilities amongst EU Member States and is in line with UK objectives
for improving the capabilities available for EU-led operations.
Article 28E of the Lisbon Treaty sets out when
the Council would adopt a decision by QMV:
— establishing PSC and determining
the list of participating Member States (QMV amongst the whole
of the Council);
— confirming participation of
a Member State that subsequently wishes to participate (QMV amongst
those members of Council already participating in PSC); and
— suspending participation of
a Member State should it no longer fulfil the criteria or its
commitments (QMV amongst those members of Council already participating
in PSC excluding the Member State in question).
The use of QMV is therefore in UK interests
since it prevents an individual Member State from blocking PSC
establishment, from blocking another Member State from subsequently
joining or from blocking the suspension of a non-performing Member
State.
Since improved capability development amongst
Member States is a key UK objective, and because the UK already
provides a significant proportion of European capability, it is
likely that we would hope to launch PSC as soon as practicable
after the entry into force of the Reform Treaty, in co-operation
with other like-minded Member States. If the UK were to decide
not to be in the first wave of PSC members, QMV would help to
ensure that any another Member State could not block any subsequent
UK application. Any decisions regarding the substantive implementation
of PSC would be by unanimity of those Member States participating
in PSC.
QUESTION 5
Do you expect that under the new Treaty arrangements,
the Political and Security Committee will prepare for meetings
of the Foreign Affairs Committee, and COREPER will prepare for
meetings of the General Affairs Council?
Once the Lisbon Treaty comes into legal force,
the revised Article 16(7) of the Treaty on European Union and
Article 240 of the Treaty on the Functioning of the European Union
will set out that COREPER shall be responsible for preparing the
work of the Council in its various formations. This includes the
General Affairs Council and the Foreign Affairs Council.
Article 38 of the Treaty on European Union states
that the Political and Security Committee shall exercise, under
the responsibility of the Council and of the High Representative,
the political control and strategic direction of crisis management
operations.
We therefore expect the Political and Security
Committee's role to remain broadly the same as it is now. COREPER
will have overall responsibility for preparing the work of all
Council formations, but where the dossiers have a European Security
and Defence Policy focus, the Political and Security Committee
will do the bulk of the detailed preparation.
QUESTION 6
Does the article on mutual assistance in case
of armed attack imply that the EU is becoming a military alliance?
What is the exact difference between the mutual defence obligations
introduced by the Lisbon Treaty and those contained in the North
Atlantic Treaty and the Brussels Treaty (art 5)? Will this clause
reduce the relevance of NATO in the long term?
The mutual defence provision is in accordance
with Article 51 of the UN Charter, which recognises the inherent
right to individual and collective self-defence. The provision
reflects the reality that EU Member States would come to the aid
of other Member States in the unlikely event that they were the
victim of armed aggression on their territory. EU Member States
who are not also members of NATO are now committed to the defence
of their fellow Member States, to the potential benefit of the
UK.
The provision does not provide a basis for the
development of an EU collective defence organisation to rival
NATO. The obligation to provide assistance falls on individual
Member States, not the EU. It goes on to provide that for Member
States which are also NATO members, NATO remains the foundation
of their collective defence and the forum for the implementation
of the mutual defence provision. It therefore confirms NATO's
role as Europe's only collective defence organisation. It provides
furthermore that commitments and co-operation under this provision
shall be consistent with NATO commitments and that the provision
does not prejudice the specific character of the security and
defence policy of Member States, which are also NATO members.
It should be recalled that the parties to the
Brussels Treaty decided, shortly after the creation of NATO, that
NATO would be responsible for the implementation, in military
terms, of the mutual defence commitment of the Brussels Treaty.
The Lisbon Treaty clause only refers to armed
aggression on the territory of a Member State, i.e a limited and
relatively unlikely scenario. NATO's Article 5 commitment ("...an
attack against one or more... shall be considered an attack against
them all...") is more extensive in its applicability, as
demonstrated by its invocation following the 9/11 attack.
QUESTION 7
What is the rationale for the creation of a European
External Action Service, and how will the Service be structured?
Will it work closely with the diplomatic services of the Member
States?
The External Action Service (EAS) will support
the new High Representative for Foreign Affairs and Security Policy.
So the rationale is the same as for the High Representative—the
change will mean better, more coherent policy implementation and
delivery of all of the EU's external policies.
As set out in the Lisbon Treaty, the EAS will
bring together staff currently working on external issues in the
Council Secretariat and the Commission—it is therefore a
sensible rationalisation of existing machinery. The Lisbon Treaty
also sets out that the EAS will benefit from some additional expertise
from Member States' secondees. It also states quite categorically
that the EAS will work in "cooperation with the Diplomatic
Services of the Member States", and it is in everyone's interests
that this is a close cooperation.
The Treaty leaves all further details on the
organisation and functioning of the EAS to a decision of the Council,
after the Treaty comes into force. And there have not yet been
any detailed discussions on the EAS in preparation for that decision.
We anticipate that these discussions will take place under both
the Slovenian and French Presidencies of the European Union. We
will keep Parliament informed of their progress. The council decision
will be subject to Parliamentary scrutiny in the usual way.
QUESTION 8
Can you explain to us the significance, in legal
terms, of adding, for the first time, a specific section on Energy
in the Treaty?
The EU already has an energy policy, but a specific
energy article removes the need to make use of other articles
such as 95 (approximation of laws for the internal market) and
175 (environment) to achieve that policy. Differences between
the new energy article and the articles that have previously been
used for energy related matters mean that the new energy article
is likely to have resulted in some small and technical extensions
of EU competence and qualified majority voting. For example, some
measures in relation to security of energy supply have been based
on article 100(1) which is limited to measures appropriate to
the economic situation, in particular if severe difficulties arise
in supply. There is no such limitation in the new energy article,
thereby potentially lowering the threshold for EU action.
The inclusion of a new Title on energy in the
Treaty will help to ensure that policies on energy markets, energy
security and energy efficiency are coherent and mutually reinforcing.
It also makes clear that measures adopted shall not affect a Member
State's right to determine the conditions for exploiting its own
energy resources. The UK Government welcomes the inclusion of
the provision, which reflects the growing importance of energy
as a political and economic issue in the EU and of the connected
policy areas of climate change, sustainability, and the environment.
QUESTION 9
How will the Protocol on Services of General Interest
impact on the making of EU policy in this area?
The Protocol on Services of General Interest
(SGI) confirms the existing position in relation to services of
general interest.
The first article confirms the (existing) principles
applicable to services of general economic interest.
The second article confirms that the Treaties
do not effect in any way the competence of Member States in relation
to non-economic services of general interest.
QUESTION 10
To what extent is it important that the EU's commitment
to "undistorted competition" is contained in a Protocol
rather than as part of the Treaty itself?
There is no change to the legal position under
the existing Treaty. The substantive Treaty provisions setting
out the powers and rules governing regulation of competition in
the EU remain the same.
The words used in that Protocol are substantively
the same as the words used in the current EC Treaty. Paragraph
1(g) of Article 3 of the current EC Treaty lists one of the Community's
activities as "a system ensuring that competition in the
internal market is not distorted". Article 3 is not retained
in the amended Treaties. Instead, Article 2 (renumbered 3) of
the amended Treaty on European Union provides for the establishment
of an internal market. The Protocol states that this reference
to the internal market "includes a system ensuring that competition
is not distorted." The Protocol is legally binding and an
integral part of the Treaty.
In addition, the new list of EU competences
in Article 2B (renumbered 3) of the Treaty on the Functioning
of the European Union includes "the establishing of the competition
rules necessary of the internal market". The substantive
Treaty provisions setting out the powers and rules governing regulation
of competition in the EU remain the same.
The Commission, as the guardians of the Treaty,
have explicitly confirmed that the position remains unchanged.
"To avoid any risk of uncertainty as to
settled law and to make fully clear that competition will continue
to be one of the main policies aiming at the good functioning
of the internal market, the European Council decided to provide
for the protocol... which paraphrases the current EC Treaty provisions...
a protocol forms an integral part of the Treaty to which it is
annexed and has the same legal value as Treaty provisions."
QUESTION 11
What view does the Government have of the implications
of the Treaty for the UK labour market if the Protocol on the
application of the Charter of fundamental rights of the European
Union to the UK (and Poland) had not been included?
The Protocol on the application of the Charter
of Fundamental Rights of the European Union to Poland and to the
United Kingdom is annexed to the Treaty of Lisbon.
The Charter simply reaffirms the rights and
principles, which apply to the EU institutions and to Member States
when implementing EU law. The Charter creates no new enforceable
rights and provides no new basis for challenging UK legislation
including that relating to the UK labour market.
The UK Protocol puts that matter beyond doubt
for the UK guaranteeing, in particular, that the Charter does
not extend the powers of any court—European or domestic—to
strike down UK law.
QUESTION 12
In written evidence submitted to our inquiry,
the Scottish Parliament European and External Relations Committee
expressed concern that in the Government's White Paper and July
Explanatory Memorandum (11625/07) there was no reference to discussions
of the UK Government with the devolved administrations, or reference
to a separate Scottish legal system or to the fact that aspects
of justice and home affairs are devolved. The Scottish Government
was unable to explain why the UK Government did not make explicit
reference to the representations that it had made or the interests
of the devolved administrations. What is the Government's response?
The Devolved Administrations were involved in
discussions on the preparation of the UK position for the IGC
legal group, as the Scottish First Minister recognised in a letter
to the Foreign Secretary of 23 July. The Scottish Executive were
also consulted on the Government's 23 July White Paper on the
IGC, along with Whitehall Departments.
Agreement on extending the UK's Justice and
Home Affairs Protocol (the opt-in) takes into account Scotland's
distinctive legal system. The Treaty will also recognise the role
of regional and local self-government in Member States for the
first time. On both these issues, the Government has supported—and
secured—the concerns of Devolved Administrations.
The issue of fisheries has also been raised
by the Scottish First Minister. The Treaty of Lisbon makes no
substantive changes to the allocation of competence for the Common
Fisheries Policy or the conservation of marine biological resources
under it. Community competence over fisheries is shared with Member
States, except for conservation measures, where it has been exclusive
since the UK's Treaty of Accession to the EC. The Treaty of Lisbon
does not change that.
Europe Directorate
Foreign and Commonwealth Office
January 2008
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